- (1.) HON'ble BHANDARI, J.- Heard learned counsel for the petitioners as well as the learned Public Prosecutor and perused the record of the case.
(2.) IT is contended by learned counsel for the petitioners that a case was registered under Sections 399, 402, 307, 353 of the Indian Penal Code (for short `the I. P. C. '), Section 3/25 of the Arms Act and Section 11 of the Rajasthan Dacoity Affected Area Act, 1986 (for short `the Act of 1986' ). The accused petitioners were arrested on 6. 4. 08, thus in view of the provisions of Section 167 of the Criminal Procedure Code (for short `the Cr. P. C. '), the Magistrate was authorized to detain the accused person in custody pending investigation maximum for the period of 60 days, however, in the present matter, the accused petitioners were detained beyond the statutory period, thus in view of the provisions of Section 167 (2) (a) (ii) Cr. P. C. , the petitioners were to be released on bail. Learned counsel for the petitioners elaborately argued that under the provisions of Section 307 IPC. , punishment is divided in two parts. In the first part, the punishment is with imprisonment of either description for a term which may be extended to ten years, and shall also be liable to fine. In the second part in the same provisions, if hurt is caused to any person by such an act, the offender is liable either to imprisonment of life or punishment which may extend to 10 years imprisonment. It is submitted that in the present matter since no hurt is caused to any person, thus the maximum punishment can be imposed for imprisonment, which may be extended to ten years. Referring to the record, it is also submitted that the allegations as existed in the FIR and otherwise are that the accused opened the fire but nobody was hurt out of that fire, hence, the petitioners are not liable to be punished with punishment of life imprisonment. So far as the provisions of Sections 399, 304 and 353 IPC and Section 3/25 of the Arms Act are concerned, the punishment is maxium of ten years under Section 399 IPC and otherwise for other provisions, it is even less than ten years, therefore, argument of learned counsel for the petitioners is that detention during the period of investigation could have been made maximum for the period of 60 days as the Magistrate was not authorize for detention beyond the period of 60 days. Referring to the provisions of Section 167 (2) Cr. P. C. , it is urged that detention by the Magistrate is authorized even for the period of 90 days, if the offence is punishable with death, imprisonment for life or imprisonment for a term of "not less than ten years". Referring to the judgment of the Hon'ble Apex Court in the case of Rajeev Chaudhary vs. State (NCT) of Delhi reported in (2001) 5 SCC 34, it is contended that the aforesaid aspect in reference to Section 167 Cr. P. C. was considered by the Hon'ble Apex Court and therein, it was held that for authorizing detention for a period of 90 days, the offence should be punishable with ten years or more, thus on the strength of the aforesaid judgment, learned counsel for the petitioners supported his argument to show that in the instant case, the investigation was required to be completed within the period of 60 days and thereby if the charge-sheet is not filed within the period of 60 days, then petitioner is to be given bail. Referring to the judgment of the trial Court, it is urged by learned counsel for the petitioners that the trial Court had not decided the issue in a specific term as to whether the Magistrate was authorized to order detention of the accused for a period of 60 days or 90 days being the period of investigation rather on hypothetical basis it is observed by the trial Court that even if, the charge-sheet was to be filed within the period of 60 days and thereby the Magistrate was authorized for detention of the accused for a period of 60 days pending investigating, then also the period of 60 days detention of the accused came to an end on 5. 6. 08 and the application in the present matter was filed for releasing accused on bail on 13. 6. 08, thus according to the trial Court, the petitioners had foregone their right of bail. According to learned counsel for the petitioners, the approach of the trial Court is wholly erroneous because even on the day of filing of application i. e. on 13. 6. 08, the investigation was not complete and no charge-sheet was filed, therefore, in view of the judgment of the Hon'ble Apex Court, the petitioners were entitled to be released on bail forthwith. A reference of the judgment of the Hon'ble Apex Court in the case of Uday Mohanlal Acharya vs. State of Maharashtra reported in (2001) 5 SCC 453 is being given wherein also the investigation could not be completed within the period for which the Magistrate was authorized to order for detention of the accused. The accused accordingly moved an application for releasing them on bail, but the prayer of the petitioner was not accepted, thus the accused petitioners therein moved to the High Court and while the application was pending, a charge-sheet was filed. Considering the aspect, the Hon'ble Apex Court came to the conclusion that the right which accrued to the petitioners is not frustrated by mere submission of the charge-sheet after moving the application for releasing the accused on bail in view of the fact that the accused got an indefeasible right to be released on bail when the investigation is not completed within the specific period. In view of the aforesaid argument, the prayer of learned counsel for the petitioners is to order for release of accused on bail in view of the provisions of Section 167 (2) Cr. P. C.
(3.) LEARNED Public Prosecutor, on the other hand, submits that the punishment under Sections 307 and 399 IPC is of ten years imprisonment, thus the investigation can be completed within the period of 90 days and thereby Magistrate was very well authorize to order detention of the accused upto the period of 90 days. LEARNED Public Prosecutor also submits that though it is a case where nobody was hurt so as to show that punishment of the offence involved in the present matter is of life imprisonment, but then in view of the provisions of Section 167 (2) (i) and (ii) Cr. P. C. that in the offence where punishment is upto 10 years of imprisonment, investigation can be completed within a period of 90 days, hence, the prayer of the petitioners to release them on bail due to non-completion of the investigation within the period of 60 days, is not a tenable argument. It is further submitted that the case under the provisions of the Act of 1986 has also been registered against the petitioners and in view of the provisions of the aforesaid Act, release of accused is not authorized prior to a period of 180 days, thus referring to the provisions of the Act, alternative argument of learned Public Prosecutor is that even if, it is assumed that the Magistrate was authorized for detention of the accused pending investigation only for the period of 60 days, then also petitioners cannot be ordered to be released prior to period 180 days as provided under the provisions of 1986. Thus, on the strength of the provisions of the Act 1986. Thus, on the strength of the provisions of the Act 1986, the prayer of the learned Public Prosecutor has to reject the application of the petitioner. I have considered the rival submissions made by the parties and perused the record of the case. Firstly coming to the facts of the present matter, it is not in dispute that there is no allegation of causing hurt to any person as an outcome of opening fire by the accused petitioners, inasmuch as, even learned Public Prosecutor has also admitted that even in the FIR and otherwise it is not being alleged that due to fire any person was hurt, thus it becomes clear that looking to the facts of the case, the maximum punishment provided under the provisions of Section 307 IPC is only of ten years imprisonment. For ready reference Section 307 IPC is quoted hereunder:-      " 307. Attempt to murder-Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may be extended to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts- When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death. " ;